Citation NR: 9617103
Decision Date: 06/19/96 Archive Date: 06/28/96
DOCKET NO. 95-02 495 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to improved death pension benefits.
ATTORNEY FOR THE BOARD
David Wulf, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1973 until
September 1976 and died in June 1994. The appellant in this
matter is the veteran’s widow.
This appeal arises from a decision rendered by the Atlanta,
Georgia Regional Office (RO) in August 1994. By this
decision, the RO found that the appellant’s (including her
children’s) countable annual income exceeded the maximum
annual rate for improved death pensions and that she was,
therefore, ineligible to receive death pension benefits at
that time. The RO set the appellant’s annual income at
“...$17,324 per year from social security benefits after last
illness expenses of $12,676 are paid for the veteran’s
death.”
REMAND
As was noted above, the appellant was denied death pension
benefits in August 1994 on the grounds that her annual
income, consisting of approximately $17,000 in social
security survivors’ benefits, was greater than the applicable
maximum annual pension benefit of $9,523. In her application
of July 1994, the appellant had reported an indebtedness
$12,676 related to the veteran’s final illness, but she had
not then indicated that she had made any payments on that
debt. Therefore, in calculating her total annual income
figure to be $17,324, no exclusions from income were taken
into account by the RO. However, in a VA Form 21-8416 in
October 1994, the appellant did indicate that she was
repaying this and other debts. These debts included a tax
bill incurred by her husband and family medical expenses.
In calculating a claimant’s countable annual income for
purposes of determining eligibility for improved death
pension benefits, an RO should, pursuant to 38 C.F.R.
§ 3.272(h)(1)(ii) (1995), deduct from income “[a]mounts paid
by a surviving spouse...for the veteran’s just debts [and
for] expenses of [the veteran’s] last illness.” Furthermore,
38 C.F.R. § 3.272(g) provides that, under certain
circumstances, unreimbursed medical expenses that are paid
during a given 12-month annualization period are to be
excluded from income for purposes of determining eligibility
for pension benefits during such period.
The appellant has not provided specific information as to
what portions of these debts have actually been paid or when
any such payments were tendered. Such information, of
course, is essential if an accurate calculation of the
appellant’s countable annual income (for the years that have
passed since the veteran’s death) is to be made.
In view of the above discussion, this case is REMANDED for
the following:
1. The RO should supply the appellant
with a VA Form 21-8416 (Request for
Information Concerning Medical, Legal or
Other Expenses) and should request that
she provide information as any payments
that she has made since the time of the
veteran’s death in satisfaction of (a)
the veteran’s $4,388.26 debt, (b) the
$12,676 in medical expenses stemming from
the veteran’s final illness, and (c) any
other medical or other potentially
excludable expenses that she or her
children may have incurred. The
appellant should also indicate the dates
upon which any such payments were made.
The RO should emphasize to the appellant
that she is only to provide information
concerning PAYMENTS ACTUALLY MADE by her.
Information relating to the total amount
of money owed is of no use in determining
eligibility for improved pension
benefits.
2. The RO should request that the
appellant provide information concerning
any adjustments that may have occurred in
the amounts of social security benefits
being paid to her and her children.
Further, the RO should request that the
appellant complete a current Improved
Pension Eligibility Verification Report
(VA Form 21-0519S-1).
3. Taking into account any information
provided by the appellant pursuant to
Nos. 1 and 2 above, the RO should
undertake to recalculate the appellant’s
(including her dependents’) countable
annual income for the years that have
passed since the veteran’s death. In so
doing, the RO should determine whether
the appellant is (or has been) eligible
to receive improved death pension
benefits. If all benefits requested are
not granted, the case, upon completion of
the usual adjudicative procedures, should
be returned to the Board for further
review.
The appellant need take no action unless such is requested.
The purpose of this REMAND is to obtain additional evidence
while ensuring compliance with due process considerations.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
(CONTINUED ON NEXT PAGE)
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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